Is Altering Refills a Criminal Act?

In this month's case, a Minnesota
court was asked to
determine when altering the
number of refills on a prescription
becomes a criminal act.

Facts of the Case

The defendant in this case
was the friend of a patient who
had received prescriptions for
penicillin and hydrocodone/acetaminophen following a
visit to the dentist. The friend
had accompanied the patient
to the dentist and also went to
the pharmacy with her to have
the prescriptions filled.

The pharmacist noticed that
the number of refills on both
prescriptions had been changed
so that "0"refills became "8"refills.
The pharmacist called the dentist,
who confirmed that he had indicated
0 refills on each prescription. While
the defendant and the patient were
still in the pharmacy, the pharmacist
called the police.

The patient told the responding
police officer that she was unaware of
any problems with the prescriptions.
When the officer queried the defendant,
she admitted that she had
altered the prescriptions when the
patient was not looking because she
believed that the patient needed more
antibiotics and pain relievers than the
dentist had prescribed.

The defendant contacted the police
the next day and changed her story.
She claimed that the patient was going
to change the prescription to indicate
10 refills, but she advised the patient
to make the "0"an "8"instead. The
defendant only admitted to giving the
patient a pen to make the change and
then simply told her that the altered
prescriptions "looked fine."

The Court's Ruling

The defendant was charged with
attempting to procure a controlled
substance through fraud or deceit. The
trial court dismissed the case for lack
of probable cause. The appellate court
affirmed the dismissal.

The Court's Reasoning

In dismissing the case, the Minnesota
Court of Appeals noted that, under
the law, an attempt requires both
intent and a substantial step, beyond
the mere altering of the number of
refills, toward the commission of a
crime. In this case, the presentation of
the original prescription, if successful,
would have resulted in the patient
receiving only the authorized prescribed
dose of the medication.

In the court's view, a criminal
act would not take place
until the defendant made a second
appearance at the pharmacy
to obtain an illegal refill.
The defendant had the intent to
illegally acquire a controlled
substance, but merely altering
the number of refills did not
yet amount to a substantial
step toward illegally procuring
the drug.

It should be noted that the
same set of facts in another
jurisdiction could well result in
a different decision. The question
then becomes, at what
point in time has a refill-altering
person done enough to
commit a criminal act? This
court determined that this act
would not occur until a request for an
illegal refill was made.

One can well imagine the possible
legal pressure on a pharmacist who
dispenses a prescription that he or she
knows or should have known was not
legitimate under the Controlled Substances
Act. Yet, the defendant in this
case suffered no legal consequences.
The logic does not follow. What is
good for the goose should be good for
the gander. The risk is such that a
pharmacist should error on the side of
caution and refuse to fill a prescription
that has been altered, even if
courts believe that no crime has yet
occurred.